Sorden v. Parker , 53 Pa. Super. 539 ( 1913 )

Opinion by

Porter, J.,

The defendant was engaged in the business of hoisting and locating boilers, stacks, safes and like appliances and the plaintiff was employed by him as “a rigger’s helper.” On January 13, 1910, the plaintiff and an outside foreman, named Monroe, were sent by the defendant to install a small boiler for the Pennsylvania Salt Manufacturing Company. It became necessary in the work to place a short piece of timber across the joist, below which the boiler was to be installed, for the purpose of attaching thereto the tackle used in hoisting the boiler into position. A ladder was obtained and set against tbe wall of the building, the lower end resting on the concrete floor, and Monroe, the foreman, directed the plaintiff to ascend the ladder, taking with him the piece of timber 6 x 6 in size and about 4 feet long, which was to be placed above and across the joist, Monroe saying to the plaintiff, “I will hold the ladder.” The plaintiff took the piece of timber, ascended to the top of the ladder, looked down and said to Monroe, “Have you got the ladder?” Monroe replied, “Yes.” The plaintiff then took both hands and reached over to place the timber in position. While he was doing this Monroe let go the ladder, which thereupon slipped, and plaintiff fell and was injured. The only negligence averred in plaintiff’s statement was that the foreman “negligently failed to guard said ladder and permitted the same to become dislodged from its position, by reason whereof plaintiff was violently thrown from a great distance to the ground.” There was no evidence that the ladder or other appliances were defective, and the only act of negligence suggested by the evidence was the act of the foreman, in failing to securely hold the ladder. The plaintiff recovered a vereict, but the learned judge of the court below entered judgment in favor of the defendant non obstante veredicto, and from that judgment the plaintiff appeals.

The opinion filed by Judge Audenried, in disposing of the motion of the defendant for judgment non obstante veredicto, which will appear in the report of this case, so fully recites the facts and vindicates the conclusion at which he arrived, that extended discussion of the question presented is rendered unnecessary. While Monroe was the foreman, the evidence clearly discloses that he was to perform manual labor jointly with the plaintiff and that the latter was fully aware of that fact. Monroe represented the defendant in so far as the duty of providing safe and suitable appliances and the avoidance of unnecessary risk in planning the work were involved, but the mere act of holding the ladder wa,s not incidental to the duties of superintendence, it was merely the performance of a manual act, within the scope of the duties of any workman: McGrath v. Thompson, 231 Pa. 631. An employer is not responsible for the negligence of such an agent in the performance of acts which are in no sense a part of the master’s work and are precisely upon the level with the work of the other servants. When the manager or vice-principal undertakes work in simple co-operation with other servants, and upon precisely the same footing with them, he becomes for the time being a mere fellow-servant with them acting as such. The effect of the Act of June 10, 1907, P. L. 523, upon the question here presented was considered by this court in Feeney v. Abelson, 49 Pa. Superior Ct. 163. Our Brother Henderson said, in that case, referring to the two clauses of that statute under which alone liability could be asserted in the present case: “They both relate, however, to a situation in which there is the relation of superior and inferior, of an employee and another exercising control and directing the manner in which the action shall be performed. It was not intended that liability should be created except in the case of results happening from the exercise of superintendency. The consequences of the negligence of the persons of the classes named are visited on the employer because such negligence is that of a representative of the employer — the vice principal as to the particular transaction. The statute does not cover the cases of co-employees engaged in the accomplishment of a common object where the negligence of one results in injury to the other. . . . Certain it is that the driver in starting up the team, which is the negligence complained of, was not acting as a foreman or vice principal but obviously in the capacity of a co-employee with the other two men who were taking part in removing the piece of iron.” The evidence in this case discloses that there were only two men, this plaintiff and Monroe, engaged in the actual work at the scene of the accident, both were engaged in the manual labor involved in the enterprise. Monroe was the representative of the defendant in those things which involved superintendence, but in performing the manual labor he was the fellow servant of the plaintiff. The act of Monroe in holding the ladder was that of a fellow servant, and for his negligence in that act, which resulted in the injury of his fellow servant, the employer is not liable. This case cannot be distinguished from Feeney v. Abelson, supra, and the specification of error must be dismissed.

The judgment is affirmed.

Rice, P. J., dissents.